Serious violations of human rights occur during war time. During this period there is a tendency to bend the Rule of Law to placate popular sentiment for draconian measures against suspected enemy agents and terrorists. Judicial protection which is most needed during those times unfortunately is least available because bold judicial souls become timorous when confronted with formidable executive claims of national security. This happened in England during World War II when relief was denied to Liversidge who was detained, on the subjective satisfaction of the Home Secretary, because of suspected hostile associations. The judiciary in the USA also faltered during World War II. In its decision in Korematsu it upheld the constitutionality of an Exclusion Order which segregated only American citizens of Japanese descent in relocation centres, an euphemism for concentration camps. The Court deferred to the judgment of the military about the reality and imminence of the danger of anticipated Japanese landings on the West Coast and suspected acts of sabotage. Several years later in 1985 it was established before a District Court in California that the US government had knowingly withheld vital information from the Court and also provided misleading information on the question of military necessity. Judge Patel, who decided the case memorably concludes: ‘‘Korematsu. stands as a constant caution that in times of war or declared military necessity, our institutions must be vigilant in protecting constitutional guarantees. It stands as a caution that in times of distress the shield of military necessity and national security must not be used to protect governmental actions from close scrutiny and accountability.’’ For decades Israel has been the victim of unparalleled terrorism and has suffered immensely. Despite this environment the Supreme Court of Israel, under its President Aharon Barak has upheld the basic rights of suspected terrorists. In one of its judgments the Court declared ‘‘security considerations are not magic words. The court must insist on hearing the specific security considerations that prompted the government’s actions. The court must be persuaded that the security considerations actively motivated the government’s action, and were not merely a pretext. Finally, the court must be convinced that the security measures adopted were the available measures least damaging to human rights.’’ The Court’s insistence on strict judicial scrutiny, its application of the principle of proportionality and its approach are commendable and is worthy of emulation. Not unexpectedly the Court’s judgments have been subject to severe criticism. They are perceived by some as too liberal and thus hindering the fight against terrorism. President Barak’s response is ‘‘we, as judges, have a North Star that guides us — the fundamental values and principles of constitutional democracy. A heavy responsibility rests on our shoulders. Even in hard times, we must remain true to ourselves. Some of the public will applaud our decision; others will oppose it. Perhaps neither side will have read our reasoning. We have done our part, however. That is our role and our obligation as judges.’’ People get impatient when there are no swift results in capturing and punishing terrorists. It is not realised that democracy has certain inherent disadvantages which authoritarian regimes do not suffer from and there are limits to the means that may be employed. This dilemma of democracy was felicitously expressed by President Barak: ‘‘This is the destiny of democracy, as not all means are acceptable to it, and not all practices employed by its enemies are open before it. Although a democracy must often fight with one hand tied behind its back, it nonetheless has the upper hand. Preserving the Rule of Law and recognition of an individual’s liberty constitutes an important component in its understanding of security. At the end of the day, they strengthen its spirits and its strength allows it to overcome its difficulties.’’ Cutting through red-tape Red-tapism apparently is universal. Edward James who retired after a career working backstage in theatres in England was longing for meditation. He bought a half-acre wood so that he and a few friends could sit and meditate among the trees for about half-an-hour at a time. To his consternation he was informed by the district council that planning permission was required because it was a change of use from woodland to meditational woodland and several forms needed to be filled up. Moreover, apart from the district council, Essex county council, English Nature and the Essex Wildlife Trust had to be consulted over his application. One of the conditions that the Council may impose is that no more than one vehicle be allowed in between sunset and sunrise and that there be a limit on the number of people who use the site so that residents will not be disturbed. Bureaucratic whimsicality would be a good subject for meditation and this surely cannot disturb anyone.
